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Property Division in Illinois

Property Division in Illinois

Property division in Illinois is one of the central actions couples facing divorce must navigate.

To help you learn more about marital property and its division in Illinois, Cooper Trachtenberg Law Group, LLC, family law experts, cover these and many other issues related to divorce.

Is Illinois an equitable distribution state or a community property state?

Illinois is an equitable distribution state. Unlike community property states, where the property is divided equally (50-50) without exception, equitable distribution means the court has discretion in dividing marital property. It considers several factors in determining a reasonable and fair division in each case.

What is the difference between marital property and separate property in Illinois?

In short, marital property is property spouses acquire during the marriage. Only marital property is subject to division in Illinois, unlike separate property – which is defined as the property each spouse owned before the matrimony.

Under Illinois law (the Illinois Marriage and Dissolution of Marriage Act, Section 503), the non-marital property encompasses the following:

  1. Property acquired by gift, legacy or descent, or property acquired in exchange for such property;
  2. Property acquired in exchange for property acquired before the marriage;
  3. Property acquired by a spouse after a judgment of legal separation;
  4. Property excluded by valid agreement of the parties, including a premarital agreement or a postnuptial agreement;
  5. Any judgment or property obtained by judgment;
  6. Property acquired before the marriage, except retirement plans that may have both marital and non-marital characteristics;
  7. All property acquired by a spouse by the sole use of non-marital property;
  8. The non-marital property value increase.

Furthermore, this section contains detailed rules about the treatment of commingled marital and non-marital property, which is one of the most contested issues between spouses, giving rise to family disputes.

What about inheritance? Is the money one spouse inherited considered separate property?

Property Division

As mentioned, inheritance is separate property if there was no commingling with marital property. In that case, the court considers the identity of the contributed property. That means that if the contributed property loses its specificity, it transmutes to the estate receiving the assets. On the other hand, if contributed property retains its identity, it remains the property of the contributing estate (separate property).

What if spouses disagree over the property’s status? Who makes the final decision?

Section 502. of the Illinois Marriage and Dissolution of Marriage Act allows the spouses to agree on issues such as the disposition of property, alimony, allocation of parental responsibility, and child support. The agreement must be in writing, and its provisions related to property division are binding. However, if spouses disagree, the court has the final word.

Does equitable distribution mean equal distribution? What are the factors that justify an unequal distribution in Illinois?

No. In an equitable distribution state, there is no guarantee of equal (50-50) distribution of marital property, meaning that one spouse can receive more than half of the property if the court deems it fair and reasonable. The court considers each case, analyzing various factors that justify an unequal distribution. According to Part V of the Illinois Marriage and Dissolution of Marriage Act, these factors include:

  1. The contributions of each spouse to the acquisition, preservation, and value of the marital estate;
  2. The duration of the marriage;
  3. The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
  4. The custodial provisions for any children;
  5. Whether the apportionment is in place of or in addition to maintenance (alimony);
  6. Any previous obligations for support or maintenance for either spouse;
  7. The tax consequences of the property division upon the respective economic circumstances of the parties;
  8. The reasonable opportunity of each spouse for future acquisition of capital assets and income;
  9. Any claims of intentional dissipation or waste made by either spouse; and
  10. A prenuptial or postnuptial agreement.

Can family lawyers affect the distribution of marital property in Illinois?

Family lawyers can make a significant difference. An experienced family lawyer can help parties divide property out of court using collaborative divorce. In case of litigation, the right family attorney will ensure marital and non-marital assets are listed transparently and accurately. With financial experts, appraisers, and other professionals, a knowledgeable family lawyer protects their client’s interests, ensuring they receive a fair and reasonable share of marital property.

Litigation, mediation, and collaborative divorce – what is the best solution for marital property division?

In Illinois, mediation is mandatory regarding child custody and visitation issues. In other situations, including property division, the court reviews each case to determine which option is the best.

Litigation is known as a time-consuming and financially draining process. On the other hand, collaborative divorce provides spouses with the opportunity to resolve property-related disputes out of court. In a collaborative divorce, each party retains an attorney. They work shoulder-to-shoulder to enable the best possible outcomes. The key to collaborative divorce’s effectiveness is cooperation, transparency, and a non-adversarial approach to disputed matters.

Family Law Attorneys You Can Trust

At Cooper Trachtenberg Law Group, LLC, we go the extra mile to provide our clients with the best possible experience in property division disputes.

Working with other parties’ attorneys, we use our decades-long experience in collaborative divorce to achieve trust, transparency, and cooperation in each case.

In litigation, we can guarantee top-notch representation in court. With us, you can have peace of mind, no matter how complex your case is.

Call us today 847-995-8800 to schedule your appointment.


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